Published Appellate Court Opinions

The trial court's order compelling defendant to disclose the passcodes to his cell phones does not violate his right against self-incrimination under the Fifth Amendment to the United States Constitution because, although the defendant's act of producing the passcodes conveyed implicit facts as to the ownership, control, and ability to access the phones, the conveyance of these facts was a foregone conclusion because defendant did not give the State any information it did not already possess. The order also does not violate defendant's right against self-incrimination under New Jersey's common law, N.J.S.A. 2A:84A-19, or N.J.R.E. 503.

The court reverses two murder convictions. The motion to suppress a photograph of a gun and ammunition similar to that used in the double murder should have been granted because the photograph was mistakenly provided by Sprint in response to a communications data warrant (CDW) that did not seek photographs. The State argued that the photograph was in plain view, but as the file containing the photograph was clearly identified as a photograph, and labeled as outside the time frame of the CDW, the court rejects the plain view argument. Admission of that photograph was not harmless error, given the State's repeated emphasis on the photograph in summation as well as the fact that the jury declared itself deadlocked three times.

Defendant challenges the denial of his fourth petition for post-conviction relief (PCR), arising from a 1984 murder conviction. He contends that the revised waiver statute, N.J.S.A. 2A:4A-26.1(c)(1), effective March 1, 2016, should have been retroactively applied by the PCR judge pursuant to our holding in State in Interest of J.F., 446 N.J. Super. 39 (App. Div. 2016). Although defendant was fourteen years and one month of age at the time he committed the crime, we hold N.J.S.A. 2A:4A-26.1(c)(1), which does not authorize waiver to adult court of a juvenile under the age of fifteen, has no retroactive application where a defendant's conviction and sentence have been adjudicated with finality.

In this appeal involving an interstate custody dispute, the court reverses the Family Part's order denying the South Dakota mother's motion to dismiss. Applying the Uniform Child Custody Jurisdiction and Enforcement Act, the court concludes the Family Part initially exercised jurisdiction in 2016 based on a mistaken finding that New Jersey was the children's "home state," as the parties' twin daughters did not reside here for six consecutive months immediately before the father filed suit. Furthermore, the trial court should have determined, by the time it decided defendant's motion to dismiss over a year later, that New Jersey lacked "exclusive, continuing jurisdiction," because both parties and their daughters had long been absent from New Jersey, they lacked a significant connection here, and substantial relevant evidence was no longer available here. In any event, New Jersey had become an inconvenient forum. The court remands the case for a stay of further proceedings in anticipation of dismissal.

This court invalidated an arbitration agreement because the parties did not understand the rights that ostensibly foreclosed plaintiff's right to a jury trial. They could have designated an arbitral institution (like AAA or JAMS) or they could have communicated a general method for selecting a different arbitration setting. Identifying the arbitration process is important because it provides a "meeting of the minds" about what replaced a judicial adjudication. Here, the agreement ignored the subject altogether. This court therefore reversed the order compelling arbitration for lack of mutual assent and remanded to the trial court for further proceedings.

This appeal involves the standards and procedures for in camera review and judicial disclosure of a parent's presumptively-confidential juvenile records in child welfare litigation brought by the Division of Child Protection and Permanency ("the Division"), a context not addressed in existing case law.

The Law Guardian objected to the father having unsupervised parenting time with his eighteen-month-old daughter, having learned that he had been adjudicated delinquent as a juvenile several years earlier after for committing sexual offenses upon two minors. The father opposed the court reviewing or disclosing the juvenile records, asserting they are confidential under N.J.S.A. 2A:4A-60.

After hearing oral argument, the Family Part judge reviewed the father's records in camera. The judge then released the records in their entirety to counsel, pursuant to a protective order confining their use to the present Title 30 litigation. The father has appealed the judge's rulings.

The panel affirms the Family Part judge's decision to conduct an in camera review of the records. The panel also upholds the judge's denial of the father's request for the court to conduct an additional hearing after the in camera review was completed. However, because the court's decision to release the records without further hearing was not accompanied by a statement of reasons, as required by case law and Rule 1:7-4, the panel remands this matter for the court to reconsider the matter, make any appropriate modifications, and generate the requisite statement of reasons.

The court reverses and remands for reconsideration the trial court's order of pre-trial detention. The State charged defendant with cyber-harassment, N.J.S.A. 2C:33-4.1(a)(2); and retaliation against a witness, N.J.S.A. 2C:28-5(b), based on Facebook posts in which defendant, in coarse language, identified and castigated a witness at a murder trial, and expressed her hope that someone would "blow [his] glasses . . . off his face." The court reverses the trial court's findings of probable cause with respect to cyber-harassment, as the posts did not involve lewd, indecent, or obscene statements. Applying First Amendment principles governing "true threats," and "advocacy intended, and likely, to incite imminent lawless action," United States v. Alvarez, 567 U.S. 709, 718 (2012), the court affirms the trial court's finding of probable cause to charge retaliation, but concludes that the "weight of the evidence against the . . . defendant," N.J.S.A. 2A:162-20(b), was nonetheless weak, requiring reconsideration of the detention decision.

A statute of limitations enacted in 2009 bars residential foreclosure actions commenced after the earliest of three points in time: six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a), thirty-six years from the recording of the mortgage, N.J.S.A. 2A:50-56.1(b), and twenty years from an uncured default, N.J.S.A. 2A:50-56.1(c). In this appeal, the court rejected a mortgagor's argument that a foreclosure action was time-barred because it was filed seven years after a default and the acceleration of the loan. The court determined that the triggering event in subsection (a)'s six-year provision is the date "set forth in the mortgage or the note," and not the date upon which the mortgagee accelerated the loan, because of subsection (a)'s clear and unambiguous language and because subsection (c) provides a time-frame – twenty years – that begins to run upon an uncured default.

N.J.S.A. 9:17-43(a)(1) establishes a presumption that "[a] man is presumed to be the biological father of a child if . . . [h]e and the child's biological mother [were] married to each other and the child [was] born during the marriage." The decedent here died intestate, leaving siblings and a child, who was born when his mother was married to another man. Decedent's siblings claim this presumption, as well as other circumstances, required the court to assume that the mother's husband had "equitably adopted" the child and thereby severed the child's relationship to the decedent. The court affirmed the trial court's grant of summary judgment, holding that N.J.S.A. 9:17-43(a)(1)'s presumption had been rebutted by DNA evidence that conclusively established that the decedent fathered the child, and that the other circumstances were of insufficient weight to cause a break in that natural relationship.

Plaintiff is a certified radon measurement and mitigation business regulated by the Department of Environmental Protection ("DEP") and the largest radon measurement business in the State. While the DEP was pursuing a regulatory enforcement action against the company, the company filed suit against the DEP and several DEP officials in the Law Division, alleging improper conduct and violations of its constitutional, statutory, and common-law rights.

Defendant moved to dismiss the company's constitutional and civil rights claims, asserting their alleged conduct was shielded under principles of qualified immunity. The trial court partially denied the immunity motion and ordered the parties to proceed with discovery.

The panel concludes the trial court misapplied principles of qualified immunity and should have dismissed the corresponding counts of the complaint. The DEP did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against the company, and by directing that communications between the company and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing. Among other things, the panel notes that a regulatory agency must retain the discretion to interact with private parties in a manner it deems most efficient and effective, so long as it responds to outside inquires within a reasonable time and in a reasonable manner. Discovery on these claims was unnecessary, as defendants have qualified immunity from suit, not just a final judgment. The matter is remanded to adjudicate other open counts of the complaint.

In a separate unpublished opinion issued today, the panel affirmed in part the findings of the DEP Commissioner and the two administrative law judges that the company committed various regulatory violations, and reversed and remanded those findings in part.

In this appeal, a now-evicted tenant of a residential apartment, which he sublet to another, argued that only the subtenant, whose conduct generated the tenancy action, could be evicted. In affirming a judgment of possession, the court rejected the tenant's strained interpretation of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), and conclude that a wrongful act of one permits the eviction of all occupants.

Although the court affirmed the termination of parental rights of these parents, who executed an identified surrender and were removed to Peru, their country of origin, the court emphasized the need to put on the record all matters in child protective services litigation resulting in an order, even when the parties present consent to the order. Notice should also be provided to biological parents when the Division of Child Protection and Permanency seeks to vacate an identified surrender and seek termination of parental rights.

We affirm defendant's judgment of conviction for fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant claimed his guilty plea lacked an adequate factual basis and he demonstrated a colorable claim of innocence. We hold the trial court properly reviewed defendant's claims using the factors set forth in State v. Slater, 198 N.J. 145 (2009), and not a de novo standard of review. We conclude the trial court did not abuse its discretion in making these findings and that there was an adequate factual basis for the guilty plea.

Dissent and opinion filed.

Plaintiff suffered injuries while a forty-year-old man struck a piñata at a birthday party. The judge charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception (2) to the Model Charge. That exception states that "[i]n cases where the host is conducting some 'activity' on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest." This court held that when a plaintiff sustains an injury resulting solely from an "activity" on the host's property – as opposed to an injury caused by a combination of that activity and a physical dangerous condition on the property – then the judge should only charge Exception (2).

The panel addresses the strip search statute, N.J.S.A. 2A:161A-1 to -10, which affords certain protections to persons who are arrested or detained for non-indictable offenses, and whether the Attorney General Guidelines for strip searches extend those protections to persons arrested or detained for crimes.

The panel concludes that neither the legislative history nor the plain terms of the statute authorized the Attorney General to promulgate Guidelines to extend the statute's protections to persons detained or arrested for crimes. The panel further concludes that the strip search was justified here by probable cause and reasonable exigent circumstances, thereby satisfying the Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution.

The panel affirms the trial court's order denying defendant's motion to suppress five bricks of heroin seized from defendant's groin area pursuant to a strip search following defendant's arrest for indictable drug offenses.

The panel reverses the trial court's summary judgment dismissal of plaintiff L.E.'s complaint that she was sexually assaulted in a high school bathroom during class hours as a result of the negligent supervision of defendant school board and its employees. The court holds that negligent supervision is distinct from a claimed failure to provide police protection services, or to enforce laws, for which the Tort Claims Act provides immunity, under N.J.S.A. 59:5-4, N.J.S.A. 59:3-5, and N.J.S.A. 59:2-4. Therefore, the trial court erred in relying on the Act in dismissing the complaint. Noting that the duty to supervise students during school hours on school property is well-established, the panel concludes that a jury could reasonably find that defendants violated the duty under the facts presented; and, despite the students' independent acts, the negligent supervision was a proximate cause of L.E.'s injuries.

Plaintiff filed a complaint that alleged five notices of intention to foreclose served on him by defendant BAC Home Loans Servicing, LP. (BAC) violated the Fair Foreclosure Act. He asserted that BAC – the alleged servicer of loans made in 2007 when plaintiff purchased his residence – neglected to include the name and address of the lender. Although no foreclosure action followed on the heels of these notices, plaintiff claims these FFA violations – not actionable on their own – may form the basis of a claim under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Consequently, he argues that the trial judge erred in dismissing the complaint by applying the litigation privilege and by holding that the alleged FFA violation cannot support a TCCWNA claim. The court rejected the application of the litigation privilege but because the legal grounds upon which the latter determination was based have shifted since the trial judge's decision and the perfection of this appeal, see Spade v. Select Comfort Corp., 232 N.J. 504 (2018), the court vacated the order of dismissal and remanded to allow for an amended pleading expressing the true nature of his damage claim.

Where, as occurred here, decedent and her spouse transferred property to a trust, retained life interests in the property, and directed the trustee to transfer the property to a relative upon the death of decedent or her spouse, whichever is the last to occur, the Division of Taxation did not err by imposing an inheritance transfer tax on the full value of the property because decedent and her spouse held the property as tenants by the entirety, and the transfer was intended to take effect "at or after" decedent's death. N.J.S.A. 54:34-1(c).

In this employment case, plaintiff asserted claims for violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and intentional infliction of emotional distress. The trial court granted defendants' motion to dismiss the complaint, finding plaintiff was obligated to litigate her claims in arbitration pursuant to an agreement she executed when she was hired. The agreement also included a punitive damages waiver, which the trial court determined was enforceable.

The court affirmed the order dismissing the complaint, finding the agreement satisfied the requirements established in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and therefore plaintiff was obligated to prosecute her claims in arbitration. The court, however, modified the order, holding the punitive damages waiver is unenforceable because it violates the public policy underlying the LAD. The court further concluded the waiver should be severed from the agreement, and directed that the matter proceed to arbitration with plaintiff able to pursue her punitive damages claim.

This appeal involves the warrantless, nonconsensual search of children's school records for the name of their father, defendant J.S.G., who was the owner of a vehicle linked to two burglaries. Defendant filed a motion to suppress his name, arguing the police obtained it in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. § 1232g, and its corresponding regulation, 34 C.F.R. § 99, and the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its corresponding regulations, N.J.A.C. 6A:32-7.1 to -7.8, governing the disclosure of student educational records.

We affirmed the denial of defendant's motion, finding FERPA did not create an enforceable right or provide for suppression as set forth in Gonzalez Univ. v. Doe, 536 U.S. 273 (2002). By analogy, we relied on State v. Evers, 175 N.J. 355 (2003), involving the Federal Electronic Communications Privacy Act (ECPA), to conclude that FERPA, like the ECPA, does not confer a reasonable expectation of privacy under the Fourth Amendment in student records.

We considered the NJPRA and its corresponding regulations, which permit school officials to provide directory information, including a student's name, to law enforcement, and which require school official to provide such information at the request of law enforcement. We also determined that like FERPA, the NJPRA merely provides administrative remedies for violations and does not permit a private right of action or suppression. We also ruled that the NJPRA does not create a reasonable expectation of privacy in student records under Article I, paragraph 7 of the New Jersey Constitution.

Finally, we followed federal law, which holds that a defendant's identity resulting from an unlawful search is not subject to the exclusionary rule.